SPELDEWINDE v. WARD.

SPELDEWINDE v. WARD.

P. C., Nuwara Eliya, 16,017.

Criminal trespass-Penal Code, s. 483-Ejectment under writ of District Court- Re-entry of person ejected-Intention to annoy the owner-Unoccupied land.

The Fiscal, in pursuance of a writ of execution, ejected A from a land decreed to be the property of B, and put B's agent C in possession. C occupied it for a few days and went away, when A re-entered.

Held, that A was rightly convicted of criminal trespass.

THE complaint against the accused was that on the 15th May, 1902, the Fiscal, in pursuance of a decree pronounced in the District Court of Kandy in case No. 12,924 and of the writ of possession issued thereon, delivered over the land mentioned in the writ, which was a plot of patana and scrub land of about

3 acres in extent, to a representative of the Secretary of State for War (who was the plaintiff in the District Court case), after removing therefrom the accused, who was the defendant in the said case; that Sergeant Hannan, who took charge of the land on behalf of the Secretary of State for War, was in possession till the 18th June, 1902, when he left the property; that on the 20th June the accused re-entered the premises with his family and cattle, and has continued there with intent to annoy the Secretary of State for War, and that thereby he has committed criminal trespass punishable by section 433 in the Penal Code.

The accused did not wish to cross-examine any of the witnesses for the prosecution, nor call any witnesses on his own behalf, but contended that, as Sergeant Hannan quitted the premises and there was no one in occupation thereof, he went in and stayed in the house, having no other place to go to, and that merely remaining on the property without right or title was not criminal trespass, because he had no intent, nor was any intent proved on his part when he entered the property or after such entry, " to intimidate, insult, or annoy any person," as set forth in section 437, which defines the nature of criminal trespass.

The Police Magistrate held that, after the ejectment of the accused and the letting in of the Secretary of State for War, the property must be taken to be in the possession of the Secretary of State for War, and that the re-entry of the accused was in itself evidence of intent to annoy the Secretary of State for War.

The Magistrate found the accused guilty and sentenced him to pay a fine of Rs. 50.

The accused appealed.

The case was argued before Moncreiff, J., and Middleton, J., on the 23rd February, 1903.

Dornhorst, for appellant.-The offence laid must be proved. There is no evidence of criminal intent. Mayne's Criminal Law of India, 734 (1896); Starling's Indian Criminal Law, 531 (1893); re Govind Prasad, I. L. R. 2 All. 465, where Mr. Justice Straight said: " I cannot agree in the argument that where an entry upon property is in itself illegal, that is sufficient to establish one of the criminal intents required by section 441. Because an act is illegal in the sense that it is a breach of a man's duties and obligations under the Civil Law to obey and submit to any process that is sought to be enforced against him by executions or otherwise, it does not follow as a necessary consequence that that act is criminally unlawful and therefore punishable. The intent

with which the act is done must be established by clear and convincing evidence of such character and description as the particular nature of the case requires. " Pulle v. Gunasekere (1 S. C. R. 77); Smith v. Ahamado (1 C. L. R. 17). The accused, having no other house to go to, found the land unoccupied and entered it. His intention was not to annoy any person, but only to find a habitation for himself.

Elliott, for respondent.-The War Office is the owner of the property, and it was in occupation at the time of the re-entry of the accused. Stroud's Judicial Dictionary, s. v. " occupation," and cases quoted thereunder. Annoyanc

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